While focusing their resources and political energy on the NSA’s mass collection of metadata, privacy advocates have neglected the most dangerous institutionalized violations of the Fourth Amendment: administrative subpoenas.
Now a United States District Court judge in Texas has ruled for the Drug Enforcement Agency that an administrative subpoena may be used to search medical records.
It was inevitable, given the march towards illegally nullifying the Fourth Amendment through use of these judge-less bureaucrat warrants authorized by Congress.
Administrative subpoenas are issued unilaterally by government agencies -- meaning without approval by neutral judges -- and without probable cause stated under oath and affirmation as required by the Fourth Amendment. There are now 336 federal statutes authorizing administrative subpoenas, according to the Department of Justice.
In U.S. v Zadeh, the DEA obtained the records of 35 patient files without showing probable cause or obtaining a warrant issued by a judge. Citing New Deal-era case law, Judge Reed O’Connor noted that “[t]he Supreme Court has refused to require that [a federal] agency have probable cause to justify issuance of an administrative subpoena,” and that they may be issued “merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." (Emphasis added).
In other words, the government may now use “fishing expeditions” for medical records.
Those constitutionally grotesque New Deal-era decisions violated the Fourth Amendment on its face, and were ideological, progressive foolishness when issued against the likes of the Morton Salt Company in 1950. Now this corrupt precedent creating institutionalized violations of the Fourth Amendment has been applied to medical records.
Dr. Zadeh has filed an appeal. Conservative activist Andy Schlafly, the lawyer for the Association of American Physicians & Surgeons, has filed an amicus brief stating, “[w]ithout a warrant and without initially identifying themselves, federal agents searched patient medical records . . . based merely on a state administrative subpoena. A month later the [DEA] sought enforcement . . . [and n]one of the checks and balances against overreaching by one branch of government existed for this warrantless demand for medical records.”
The targeting of private medical records shows that it is now far past the time to eliminate administrative subpoenas for good. Congress may do that legislatively. History also shows it can be done even by the courts, which have the authority -- actually, the constitutional duty -- to declare void acts of Congress in violation of the Constitution.
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